Last Updated: October 14th, 2019
PLEASE BE AWARE THAT SECTION 21 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PURCHASES FROM THIRD PARTIES: IF YOU HAVE PURCHASED ANY COMPANY PRODUCTS FROM A THIRD PARTY OR ON A THIRD PARTY WEBSITE, YOUR AGREEMENT WITH SUCH THIRD PARTY GOVERNS YOUR RIGHTS WITH RESPECT TO SUCH PRODUCTS.
Application of the Agreement.
Applicability. The Agreement governs such purchase and sale transactions made through the on-line Product ordering system this Site, as well as your use of this Site. The terms of this Agreement are applicable only to transactions made on this Site; other Zanthion web sites on the Internet may have different terms and conditions. Orders by minors (persons under the age of 18) are prohibited under the Agreement and from this Site. The Agreement shall apply unless you have signed a separate, written purchase agreement with Zanthion that expressly states that it governs purchase made by you on this Site.
Updates to the Agreement. Zanthion reserves the right to refuse service, terminate accounts or cancel orders in its sole discretion. Zanthion also may change or modify this Agreement from time to time, with or without notice, with such revised terms applicable from the date posted. You should recheck the effective date of the Agreement posted on this Site prior to each transaction you enter into on this Site to determine if you have reviewed the version applicable to your transaction, including without limitation, Products ordered that were previously saved (but not ordered) in this Site’s shopping cart mechanism. Zanthion will post above the effective date of each version of the Agreement for your reference.
Price Quotes and Pricing. Any price quotations provided by Zanthion on this Site shall be valid for the period stated on the Site or in the quotation. If no time period is stated, then the price charged for an order will be the price in effect the day Zanthion accepts the order.
Order Processing and Orders. Barring problems contacting credit bureaus and financial institutions, orders are typically processed the same day as entered. Orders placed on this Site are not binding until accepted by Zanthion, via e-mail order confirmation or otherwise in writing. Orders for Products purchased on this Site are subject to Zanthion’s prior review and approval of your credit card, and, if you are a business (i.e. not an individual consumer), your tax/VAT number.
Terms of payment shall be determined at Zanthion’s sole discretion. Unless otherwise set forth in an invoice, payment for Products shall be made by credit card. You must provide Zanthion with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or purchase order information as a condition to purchasing any Products. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Zanthion with your credit card number and associated payment information, you agree that Zanthion is authorized to immediately invoice you for all fees and charges due and payable to Zanthion hereunder and that no additional notice or consent is required. You agree to immediately notify Zanthion of any change in your billing address or the credit card used for payment hereunder.
Prices and Taxes. Product prices shall be identified on the on-line order form at the time of your order placement (prices of Products saved in the shopping cart mechanism will be updated when you place your order if any price changes are applicable) and are in United States Dollars ($US). Zanthion may change Product prices at any time without notice. The payments required under this Section do not include any Sales Tax that may be due in connection with the Products provided under this Agreement. If Zanthion determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Zanthion shall collect such Sales Tax in addition to the payments required under this Section. If any Products, or payments for any Products, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Zanthion, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Zanthion for any liability or expense Zanthion may incur in connection with such Sales Taxes. Upon Zanthion’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Please consult our Return Policy: https://www.zanthion.com/return-policy/ for returns. Zanthion reserves the right to modify the terms of its Return Policy at any time, in its sole discretion, and the revised Return Policy will apply to sales of such Products on the Site from and after the implementation of the modified Return Policy. THE SOFTWARE AND PRODUCTS ARE PROVIDED BY ZANTHION “AS IS” WITHOUT ANY WARRANTY FROM ZANTHION OF ANY KIND WHATSOEVER. ZANTHION HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE AND THE PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY SHALL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
Product Availability, Delivery Dates, Title and Risk of Loss. Zanthion does not guarantee the availability, for sale or otherwise, of any Products depicted on this Site. Product availability may be limited, and Products may not be available for immediate download or shipment at the time an order is placed. Zanthion may restrict or limit quantities. For all Products, title and risk of loss for such Products pass from Zanthion to you upon download, or shipment, (as applicable) of the Product. Zanthion reserves the right, without liability or prior notice, to revise, discontinue or cease to make available certain Products or to cancel any order. Zanthion may ship Products that have the functionality and performance of the Products ordered, but changes between what is shipped and what is described in Zanthion’s on-line specification and the Site pages are possible.
Use of Site. Your use of the Site is subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Site or any portion of thereof, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or alter the Site (including images, text, page layout or form) of Zanthion; (c) you shall not use any metatags or other “hidden text” using Zanthion’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Site except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and or (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Site. You acknowledge and agree that Zanthion and its licensors are the sole and exclusive owner of the Site.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Zanthion through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Zanthion has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Zanthion a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Site and Zanthion’s products and services.
Force Majeure. Zanthion will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder due to any cause which is beyond its reasonable control.
Exclusion and Limitation of Liability.
IN NO EVENT SHALL ZANTHION BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES FOR ANY BREACH OF THESE TERMS, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, SALES, DATA, BUSINESS, GOODWILL OR USE, EVEN IF ZANTHION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CERTAIN STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR LIABILITIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS OR OTHERS CONTAINED IN THESE TERMS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Indemnification. You agree to indemnify and hold Zanthion, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Zanthion Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, Site; (b) your violation of the Agreement; (c) your violation of any rights of another party, including any Users; or (d) your violation of any applicable laws, rules or regulations. Zanthion reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Zanthion in asserting any available defenses. You agree that the provisions in this section will survive any termination the Agreement or your access to the Site. To the extent that this Section 13 not enforceable under the applicable laws of the jurisdiction in which you use the Product or are ordinarily resident, this Section shall not apply to you.
Governing Law and Venue. The Agreement will be governed and interpreted in accordance with the laws of the State of Colorado, USA, without reference to its choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any order or sale under the Agreement.
Termination of the Agreement. The Agreement will commence on the date you accept it (as described in the preamble above) and remain in full force and effective while you use the Site, unless terminated earlier in accordance with the Agreement. Either you or Zanthion may terminate the Agreement upon written notice to the other. Upon termination of the Agreement, your right to use the Site will automatically terminate. All provisions of the Agreement, which by their nature should survive, shall survive termination of the Agreement, including without limitation, those sections entitled “Exclusion and Limitation of Liability” and “Indemnification”.
Compliance with Laws and Export Regulations. You agree to comply with all applicable laws concerning the purchase, license and use of the Products. The transfer of technology across national boundaries is regulated in some jurisdictions, including without limitation, by the United States Government. You agree not to acquire, ship, transport, export or re-export Products, directly or indirectly, into any country in violation of any applicable law (including, but not limited to, the United States Export Administration Act and the regulations promulgated thereunder) nor will you use Products for any purpose prohibited by such laws. You agree that you shall not export any such software, product or technical data that may be available on this Site to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such U.S. or foreign law or regulation. By ordering such Product or downloading or using any such Product, you agree to comply with these terms and conditions. (For your information, the United States export laws currently prohibit the export of certain technical data, products and software into Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria, or any national or resident of those countries, or to, among other persons, anyone on the United States Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Table of Deny Orders or any Executive Orders naming additional persons or entities.)
Headings. The headings of the Agreement are for convenience of reference only and shall not form part of the Agreement. Such headings shall be ignored in the interpretation or construction of any of the Agreement.
Waivers. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of the Agreement will continue in full force and effect.
Electronic Communications. The communications between you and Zanthion use electronic means, whether you visit Site or send Zanthion e-mails, or whether Zanthion posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Zanthion in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zanthion provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Entire Agreement. The Agreement and the documents referenced in the Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and thereof and supersede any related prior agreements, understandings and discussions, oral or written. .
Order of Precedence. With regard to your license or use of any Product ordered under these the Agreement, to the extent there is any conflict or inconsistency between these the Agreement and the Zanthion Limited Warranties, the terms of the Zanthion Limited Warranties will control and take precedence.
Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Zanthion and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Application or to any aspect of your relationship with Zanthion, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify,; and (2) you or Zanthion may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent The Company Corporation 2711 Centerville Road, Suite 400 Wilmington, DE 19808.. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Zanthion will pay them for you. In addition, Zanthion will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Zanthion. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND ZANTHION HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Zanthion are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 21.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Colorado. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Zanthion username (if any), the email address you used to set up your Zanthion account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided in subsection 21.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Zanthion.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Zanthion makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Zanthion at the following address: The Company Corporation 2711 Centerville Road, Suite 400 Wilmington, DE 19808.